London square planning breach win

Why is he in the news? Acted in connection with the Royal Borough of Kensington and Chelsea’s successful defence of its decision not to grant planning permission to a developer seeking to build on communal gardens.

Developer Eliterank, which owns a property backing on to Courtfield Gardens West, London SW5, converted a lightwell into a feature occupying 25.5 square metres of the gardens to a depth of 3.5 metres.

The council told Eliterank that the conversion breached the London Squares Preservation Act 1931 in that such a feature was not contemplated in it and that the act only allowed works that were concealed underground.

The council therefore rejected the developer’s planning application. Eliterank applied for a judicial review of the council’s decision, arguing that underground meant ‘beneath surface level’ rather than beneath the ground. Mr Justice Supperstone, sitting in the High Court, disagreed and refused the developer’s application. The council is now likely to start an enforcement action for removal of the feature.

Barham acted for the secretary of the Courtfield Gardens West Garden Committee, an interested party to the proceedings.

An Eliterank spokesman said: ‘Eliterank is giving consideration whether to appeal. [This] has potentially major ramifications for all who own properties with lightwells, or other built structures, which protrude into garden squares anywhere in London covered by the 1931 act. As presently understood, the decision has the extraordinary effect that all such excavations or structures (however long ago they were made or erected) can never be legalised. All are liable to be filled in or removed if councils choose to pursue the owners.’

Thoughts on the case: ‘This is the first case known to have been taken under what was considered an obscure piece of legislation. It represents a significant victory for those wishing to preserve the integrity of London’s gardens from encroachment by neighbouring owners and developers.’

Career high: ‘I’m not a litigator, but the highs have been where I was involved from the beginning and correctly predicted the outcomes of three High Court cases – including this one.’